HomeMy WebLinkAboutContracts & Agreements_242-2006_CCv0001.pdf ASSIGNMENT, ASSUMPTION AND RELEASE AGREEMENT
This Assignment, Assumption and Release Agreement ("Agreement") is entered into as
of November 1, 2006 the "Effective Date") among the following persons/entities (collectively
referred to as the "Parties" or individually as a "Party"): Frank J. Mistretta and Margaret O.
Mistretta, individually ("Frank and Margaret"), Frank J. Mistretta and Margaret O. Mistretta as
Trustees of the Frank J. Mistretta Family Trust, established February 1, 1983 ("Mistretta
Trust") and Mistretta Family Properties, a California general partnership ("MFP") (collectively,
the "Mistretta Parties") on the one hand, and Chad Covington, individually ("Covington"),
CC&D, Inc., a California corporation (sometimes referred to as Covington Construction and
Development) ("CC&D") and Silverleaf Development, LLC, a California limited liability
company ("Silverleaf") (collectively, the "*CC&D Parties") on the other hand, with reference to
the following facts:
RECITALS
A. Mistretta Trust and MFP, as "Seller", entered into that certain Sale and Purchase
Agreement/Escrow Instructions dated April 8, 2002, with CC&D, as "Buyer" (as amended by
numerous supplemental escrow instructions and amendments to date, the "Purchase
Agreement"), with respect to that certain real property consisting of approximately 183 acres
and 274 shares of water stock located in the City of Redlands, County of San Bernardino, State
of California, as more fully described in the Purchase Agreement (the "Property").
B. On May 20, 2005, an action was commenced by Redlands Residents for Rural
Living, an unincorporated association ("RRRL") against the City of Redlands and the City
Council of the City of Redlands (collectively, "Redlands"), Chad Covington, Covington
Construction and Development and Mistretta Trust as Case No. SCVSS 126460 in the Superior
Court of the State of California for the County of San Bernardino, seeking a Petition for Writ of
Mandate under the California Environmental Quality Act, Public Resources Code §§ 21000 et
seq. ("CEQA") and the California Government Code, relating to an 84-lot residential
development proposed by CC&D/Silverleaf for the Property.
C. Attorneys for RRRL have negotiated a proposed a settlement of the Action with
attorneys for CC&D and the Mistretta Trust (the "Proposed Settlement"), which Proposed
Settlement includes., among other things, an agreement by RRRL and Redlands as to the
validity of certain entitlements with respect to the Property.
D. CC&D/Silverleaf no longer has an interest in the Property or the Project and no
longer desires to continue in the Action. However, Mistretta Trust desires to obtain the
entitlement approvals set forth in the Proposed Settlement and to obtain an assignment from
CC&D/Silverleaf of all its right, title and interest in and to all existing and future entitlements
relating to development of the Property.
E. CC&D/Silverleaf is willing to assign its right, title and interest in and to all such
entitlements provided the Mistretta Parties assume all of CC&D/Silverleaf s obligations
relating thereto and with respect to or arising out of the Action, on the terms set forth
hereinbelow.
11/1-106 8036,15
11&0 434892 v5
AGREEMENT
NOW,THEREFORE, for good and valuable consideration and in consideration for the
releases set forth below, the adequacy of which is hereby acknowledged, the Parties hereby
agree as follows:
1. Assignment. The CC&D Parties, and each of them, hereby assign, transfer and
convey to Mistretta Trust all of the right, title and interest of the CC&D Parties, and each of
them, in and to the following:
(a) all applications, permits, authorizations, consents, orders, certificates,
licenses, general and specific plans, maps, environmental impact reports, certifications,
approvals, registrations, qualifications and other entitlements accepted, granted, issued or
enacted by any of governmental and quasi-governmental bodies and agencies having
jurisdiction pertaining or relating to the Property (collectively,the "Entitlements"); and
(b) all rights and benefits, if any, and all claims, if any, against RRRL,
Redlands or other third parties (other than Parties to this Agreement)that arise from, under, as a
result of, or relate in any way to the Action, including, without limitation, any settlement
thereof(the"Legal Rights").
2. Assumption. The Mistretta Parties, and each of them, hereby assumes all of the
obligations of the CC&D Parties, and each of them, now existing or hereafter accruing, that
arise from, under, as a result of, or relate in any way to the Entitlements, the Legal Rights or the
Action (including, without limitation, any settlement thereof), regardless of whether such
obligations accrue or relate to time periods prior to or after the Effective Date. The foregoing
assumption shall not apply to amounts, if any, owed by any of the CC&D Parties to third party
contractors. consultants, professionals or attorneys (including, without limitation, the law firm
of Downey Brand) for work performed for any of the CC&D Parties prior to the Effective Date.
3. Hold Harmless. Each of the Mistretta Parties hereby agrees to indemnify,
protect, defend and hold the CC&D Parties, and each of them, and each of their constituents,
affiliates, agents and consultants harmless from and against any and all losses, claims, costs,
fees (including, without limitation, attorneys* fees), liabilities, damages and expenses arising
from the Mistretta Parties' failure to discharge any of the CC&D Parties' obligations assumed
by the Mistretta Parties pursuant to Section 2 of this Agreement, except to the extent arising
from the negligence or willful misconduct of the CC&D Parties.
4. Releases by Parties:
(a) Mistretta Parties' Release: Except as to such rights or claims as may be
created by this Agreement, which rights are expressly reserved, each of the Mistretta Parties
hereby covenants not to sue, acknowledges full and complete satisfaction of, and hereby
releases, remises, and forever discharges the CC&D Parties, and each of them, including their
agents, servants. representatives, administrators, affiliates, constituents, assigns, partners,
general partners, managing partners, limited partners, members, heirs, successors in interest,
attorneys-in-fact and attorneys (the CC&D Released Parties"), of and from any and all claims,
demands, causes of action, obligations, agreements, liens, judgments, orders, damages,
11/2 4)6 8036 15
HSC) X6489210
liabilities, losses, costs and expenses of any kind, in law or in equity, that any of the Mistretta
Parties now holds, has ever held or may in the future hold against the CC&D Released Parties,
or any of them, concerning the Purchase Agreement, the Property, the Action, the Entitlements
and the Legal Rights.
(b) CC&D Parties' Release: Except as to such rights or claims as may be created
by this Agreement, each of the CC&D Parties hereby covenants not to sue, acknowledges full
and complete satisfaction of, and hereby releases, remises, and forever discharges the Mistretta
Parties, and each of them, including their agents, servants, representatives, administrators,
affiliates, constituents, assigns, partners, general partners, managing partners, limited partners,
members, heirs, successors in interest, attorneys-in-fact and attorneys (the "Mistretta Released
Parties"), of and from any and all claims, demands, causes of action, obligations, agreements,
liens,judgments, orders, damages, liabilities, losses, costs and expenses of any kind, in law or
in equity, that any of the CC&D Parties holds, has ever held or may in the future hold against
the Mistretta Released Parties, or any of them, concerning the Purchase Agreement, the
Property, the Action, the Entitlements and the Legal Rights.
5. Authority. The Parties represent that they have the full and complete authority
to enter into this Agreement and that they are aware of no other individual or entity claiming an
interest in any of the released claims.
6. Waiver of California Civil Code Section 1542. In consideration of the
foregoing, the Parties specifically waive the benefit of the provisions of Section 1542 of the
Civil Code of the State of California, which provides as follows:
"A general release does not extend to claims which the creditor
does not know or suspect to exist in his or her favor at the time of
executing the release, which if known by him or her must have
materially affected his settlement with the debtor."
Notwithstanding the provisions of Section 1542, each of the Parties expressly acknowledges
that this Agreement is also intended to include in its effect, without limitation, claims against
other Parties of which the releasing party may not know or expect to exist at the time of the
execution hereof, and that this Agreement contemplates the extinguishment of such claims.
7. Confidentiality. The Parties agree to keep the terms of this settlement
confidential and further agree that the terms of this Agreement shall not be disclosed to any
third parties except as necessary to obtain legal or tax advice or pursuant to a subpoena issued
by a court of competent jurisdiction.
8. Representations and Warranties: Each of the Parties represents, warrants, and
agrees as follows:
(a) It has received independent legal advice from legal counsel with respect to
the advisability of making the settlement provided for herein, or has voluntarily chosen
not to seek the same, with respect to the advisability of executing this Agreement, and
with respect to the releases. waivers, and all other matters contained herein, and
11"2/06 803b 15
H&O 434492 0 3
acknowledges that it has executed this Agreement without fraud, duress, or undue
influence.
(b) Neither it, nor any agent, employee, representative, or attorney of such Party,
has made any statement, representation, or promise to any other Party regarding any
facts relied upon in entering into this Agreement, and it does not rely upon any
statement, representation or promise of any other Party, or of any agent, employee,
representative, or attorney for such other Party, in executing this Agreement, or in
making the settlement provided for herein, except as expressly stated in this Agreement.
(c) It has read this Agreement and understands the contents hereof.
(d) It has not heretofore assigned, transferred, or granted, or purported to assign,
transfer, or grant, any of the claims, demands, causes of action, obligations, agreements,
liens,judgments, orders, damages, liabilities, losses, costs and expenses of any kind, in
law or in equity that any Party now holds, will ever hold, or has ever held against any
other Party.
(e) It will execute all such further and additional documents as shall be
reasonable, convenient, necessary, or desirable to carry out the provisions of this
Agreement.
9. Costs and Attorneys' Fees. Each Party shall bear its own costs and attorneys'
fees with respect to the preparation and execution of this Agreement and any other
documentation necessary to effectuate this Agreement.
10. No Admission. Each Party has entered into this Agreement in order to
compromise the matters released herein, and nothing in this Agreement shall be deemed an
admission by any of the Parties as to any liabilities or obligations with respect to such matters.
11. Successors and Assigns. This Agreement is binding upon and shall inure to the
benefit of the Parties hereto, their respective predecessors and successors, agents, servants,
employees, representatives, administrators, affiliates, constituents, partners, general partners,
managing partners, limited partners, members, assigns, heirs, adjustors, and insurers.
12. Entire Agreement. This Agreement constitutes a single, integrated written
contract expressing the entire agreement of the Parties. There is no other agreement, written or
oral, express or implied, between the Parties with respect to the subject matter of this
Agreement. This Agreement may be modified only in a writing signed by all Parties.
13. Severability.' The Agreement shall be considered severable, Such that if any
provision or part of the Agreement is ever held invalid under any law or ruling, that provision
or part of the Agreement shall remain in force and effect to the extent allowed by law, and all
other provisions or parts shall remain in full force and effect.
14. Counterparts. This Agreement may be executed in multiple Counterpart
facsimile signature pages, each of which shall be deemed an original, and all of which taken
together shall constitute one Agreement.
tl�
f 1/-2/06 803 6 15
H&O,#34892 v5 4
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and
effective as of the date first written above.
Frank J. Mistretta
Margaret O. Mistretta
FRANK J. MISTRETTA TRUST,
Established February 1, 1983
By:
Name: Frank J. Mistretta
Its: Trustee
By:
Name: Margaret O. Mistretta
Its: Trustee
MISTRETTA FAMILY PROPERTIES
By:
Name:
Its:
SILVERLEAF DEVELOPMENT, LLC
By: Redlands 183, LLC, a California limited
liability company, its Managing Member
By: American Investment Partnership, Inc.
a Nevada corporation,
Managing Member
By:
Louis Habash, President
CC&D, INC.
By:
Chad Covington, President
Chad Covington
1112/06 8036 15
H 434892 v5 5
I DOWNEY BRAND LLP
PATRICK G. MITCHELL (BAR NO. 124420)
MICHAEL N. MILLS (BAR NO. 191762)
THOMAS A. HENRY (BAR NO. 199707)
3 555 Capitol Mall, Tenth Floor
Sacramento, CA 95814-4686
4 Telephone: (916) 444-1000
Facsimile: (916) 444-2100
5
Attorneys for Real Parties in Interest
6 CHAD COVINGTON; COVINGTON CONSTRUCTION
AND DEVELOPMENT; AND FRANK J. MISTRETTA,
7 TRUSTEE, and MARGARET MISTRETTA, TRUSTEE, of
the FRANK J. MISTRETTA FAMILY TRUST, established
8 February 1, 1983
9
10 SUPERIOR COURT OF CALIFORNIA
I I COUNTY OF SAN BERNARDINO
12
13 REDLANDS RESIDENTS FOR RURAL CASE NO. SCVSS 126460
LIVING, an unincorporated association,
14 STIPULATION AND [PROPOSED]
Petitioner, ORDER OF DISMISSAL WITH
15 PREJUDICE OF REAL PARTIES IN
V. INTEREST, CHAD COVINGTON AND
16 COVINGTON CONSTRUCTION AND
CITY OF REDLANDS, a municipal DEVELOPMENT
17 corporation, CITY COUNCIL OF THE
CITY OF REDLANDS,
18
Respondents.
19
CHAD COVINGTON, COVINGTON Assigned For All Purposes To:
20 CONSTRUCTION AND Hon. John P. Wade
DEVELOPMENT, FRANK J. Dept: S-8
21 MISTRETTA, and DOES I THROUGH
25, inclusive,
22
Real Parties in Interest
23
24
25 WHEREAS, Real Parties in Interest. CHAD COVINGTON and COVINGTON
-26 CONSTRUCTION AND DEVELOPMENT (the "Covington Parties") have entered into an
27 Assignment, Assumption and Release Agreement (the "Agreement") with Real Parties in Interest
28 FRANK J. MISTRETTA, TRUSTEE. and MARGARET MISTRETTA, TRUSTEE, of the
I
STIR A ATIO-N AND[PROPOSI,D]ORDER OF DISMISSAL OF COVINGTON PARI IES WITH PREJUDICE
I FRANK J. MISTRETTA FAMILY TRUST, established February 1, 1983 (the "Mistretta
Parties"),to transfer all of the Covington Parties'right, title and interest in the subject Property to
the Mistretta Parties, as well as all obligations arising by virtue of the Covington Parties' station
4 as Real Parties in Interest in this action; and,
5 WHEREAS, the Covington Parties no longer have any interest in the subject matter of this
6 litigation, as of November 1, 2006, the effective date of the Agreement;
7 NOW, THEREFORE, in light of the foregoing recitals, all parties to this action hereby
8 stipulate, by and through their attorneys of record, that, subject to the approval of this Court, the
9 Covington Parties are no longer indispensable parties to this action and may now be dismissed
10 with prejudice from this action.
I I IT IS SO STIPULATED AND RESPECTFULLY REQUESTED.
12
13 DATED: November 2006 Respectfully submitted,
14 DOWNEY BRAND LLP
15
16 By: MICHAEL N. MILLS
17 Attorneys for Real Parties in Interest
CHAD COVINGTON; COVINGTON
18 CONSTRUCTION AND DEVELOPMENT;
AND FRANK J. MISTRETTA, TRUSTEE, and
19 MARGARET MISTRETTA, TRUSTEE of the
FRANK J. MISTRETTA FAMILY TRUST,
0
established February 1, 1983
2
21
22
23
24
25
'6
27
28
STIPUTATIONNAND 1PROPOSED1 ORDER 0HASIMISSAL OF'COVIINGTON PARTIES W11-FI PREJUDICE
rt
2 DATED: November 2006 Respectfully submitted,
i
4
By:
5 DANIEL J. McHUGH
City Attorney
6 For Respondents CITY OF REDLANDS and the
CITY COUNCIL OF THE CITY OF REDLANDS
7
8 DATED: November 2006 Respectfully submitted,
9 LEIBOLD McCLENDON & MANN, P.C.
10
I I By:
JOHN G. McCLENDON
12 Attorneys for Petitioner
REDLANDS RESIDENTS FOR RURAL LIVING
13
14
15 [PROPOSED] ORDER
16 Based on the foregoing stipulation, and good cause appearing, IT IS HEREBY
17 ORDERED that:
18 Real Parties in Interest CHAD COVINGTON and COVINGTON CONSTRUCTION
19 AND DEVELOPMENT are hereby DISMISSED WITH PREJUDICE from the within action,
20 Redlands Residentsfar Rural Living v. Cit
y of'Redlands, et al., Case No. SCVSS 126460.
21 IT IS SO ORDERED.
22
21 DATED: 2006
24
25 HONORABLE JOHN P. WADE
Judge of the Superior Court
M
26
31017 4 1
17
-)8
3
STIPULATIO-NAND[PROPOSFDI ORDFR OF DISMISSAL OF COVINGTON PARTIFS W1 III PRf-JUDICE
I DOWNEY BRAND LLP
PATRICK G. miTcHFI-1 (BAR NO. 124420)
MICHAEL N. MILLS (BAR NO. 191762)
THOMAS A. HENRY (BAR NO. 199707)
3 555 Capitol Mall, Tenth Floor
Sacramento, CA 95814-4686
4 Telephone: (916) 444-1000
Facsimile: (916) 444-2100
Attorneys for Real Parties in Interest
6 FRANK J. MISTRETTA, TRUSTEE, and MARGARET
MISTRETTA, TRUSTEE, of the FRANK J. MISTRETTA
7 FAMILY TRUST, established February 1, 1983
8
9 SUPERIOR COURT OF CALIFORNIA
10 COUNTY OF SAN BERNARDINO
11
REDLANDS RESIDENTS FOR RURAL. CASE NO. SCVSS 126460
12 LIVING, an unincorporated association, , STIPULATED JUDGMENT BY AND
13 Petitioner, AMONG PETITIONER, RESPONDENTS
14 V. AND REAL PARTIES IN INTEREST
15 CITY OF REDLANDS, a municipal
corporation, CITY COUNCIL OF THE
16 CITY OF REDLANDS,.,
17 Respondents.
18 CHAD COVINGTON, COVINGTON Action Filed: May 20, 2005
CONSTRUCTION AND I Assigned For All Purposes To:
Z-1
19 DEVELOPMENT, FRANK J. HONORABLE JOHN P. WADE
MISTRETTA. and DOES I THROUGH Department S-8
-)o
25, inclusive,
21 Real Parties in Interest
22
23 This Stipulated Judgment is entered into by and among Petitioner. Redlands Residents for
24 Rural Living ("Petitioner"); Respondents, City of Redlands and the City Council of the City of
25 Redlands (collectively. "Redlands"), and Real Parties in Interest Frank J. Mistretta, Trustee. and
26 'Margaret Mistretta, Trustee of the Frank J. Mistretta Family Trust. established February 1, 1983
27 (collectively, "Real Par-ties"). Petitioner. Redlands and the Real Parties are collectively referred
28 to as the "Parties" or individually as a "Party."
STIPULA TED Jt 11)(AtEN-1-
RECITALS
A. On May 20, 2005, Petitioner filed this lawsuit in this Court, where it is now
pending (the "Action"), against Redlands. Petitioner also named Chad Covington, Covington
4 Construction and Development, and Frank J. Mistretta, Trustee, and Margaret Mistretta, Trustee
5 of the Frank J. Mistretta Family Trust, established February 1, 1983 as real parties in interest.
6 The Action is a Petition for Writ of Mandate under the California Environmental Quality Act,
7 Public Resources Code §§ 21000 et seq. ("CEQA") and the California Government Code
8 challenging Redlands'approval of a 84-lot residential development in the City of Redlands,
9 proposed by Covington Construction and Development on real property now owned by the Frank
10 J. Mistretta Family Trust, established February 1, 1983. Specifically, the Action challenged
11 Redlands' certification of an environmental impact report ("EIR") for the residential development,
12 Zone Change No. 390, General Plan Amendment No. 2005-02, Conditional Use Permit No. 780,
13 and Tentative Tract Map No. 16361 (collectively, the "Project").
14 B. Chad Covington and Covington Construction and Development assigned all of
15 their rights, title, interests and obligations in this Action, as well as the proposed residential
16 development described above in Paragraph A. by way of an Assignment, Assumption and Release
17 1 Agreement, dated November 1, 2006 (the "Agreement"). As a result of this Agreement, the
18 Parties previously have filed herewith a Stipulation and Proposed Order of Dismissal with
19 Prejudice of real parties in interest Chad Covington and Covington Construction and
20 Development from this Action.
21 C. After arms-length negotiations, Petitioner, Redlands, and Real Parties have
22 reached and entered into a settlement agreement by way of this Stipulated Judgment in a good
23 faith effort to avoid the uncertainty and expense of protracted litigation. The Parties respectively
24 believe it is in their best interests to settle this case.
25 TERMS
26 THEREFORE, the Parties stipulate as follows:
27 1. Jurisdiction
28 This Court has jurisdiction over the subject matter of this action and over the Parties for
2
STI PU LATED J U D6 M ENT
I purposes of this Stipulated Judgment.
No Admission of Liability
3 Redlands and Real Parties expressly deny any fault or liability for any and all claims made
4 in the Action. The Parties expressly acknowledge that this Stipulated Judgment is the
5 compromise of disputed claims and that there was no adjudication on the merits of any claim.
6 3. Disposition of Claims
7 A. This Stipulated Judgment shall be presented to the Court for entry as a judgment
8 pursuant to California Code of Civil Procedure section 664.6.
9 B. The EIR for the Project is legally adequate in all respects and its certification by
10 Redlands is hereby deemed valid under CEQA.
11 C. Redlands' Findings and Statement of Overriding Consideration, adopted pursuant
12 to CEQA, for approval of the Project are legally adequate in all respects and their approval is
13 deemed valid under CEQA.
14 D. The following entitlements previously granted by Redlands in connection with the
15 Project's approval are hereby deemed valid and legally permissible under the California
16 Government Code and all other applicable law: (1) General Plan Amendment No. 2005-02, to
17 change a portion of Highview Lane from a-Local Street"to a-Rural Collector Street;"(2) the
18 Agriculture Preserve Removal Application for approximately nine acres of land; (3) Tentative
19 Tract Map No. 16361; and (4) Conditional Use Permit No. 780.
20 E. Real Parties andlor their assigns agree to limit the Project to a Planned Residential
21 Development("PRD") as described below under the City of Redlands' Municipal Code and, in
22 consideration of the covenants and payments by Real Parties under this Stipulated Judgment,
23 Petitioner agrees to allow, and not file or make further objection to, the application, development
24 and construction of the Project by the Real Parties or their assigns in conformance to the PRD or
25 any governmental approvals of such process. The PRD will consist of a "clustered" residential
26 development not exceeding 36 residential lots/units (hereinafter, the "General Plan Alternative"),
27 the goals of which will be to preserve open space and minimize grading for the planned units.
28 Each residential lot/unit may be permitted to have a second residential unit as allowed under
STI FU LATE DJUDGIMENT
I sections 65852.1 and 65852.2 of the Government Code and Redlands' municipal code. The
General Plan Alternative is one of the alternatives analyzed in the EIR and is identified as the
3 "General Plan Alternative" in Section 7.4 of the EIR. The EIR identified the General Plan
4 Alternative as the "environmentally superior alternative" as part of the CEQA review process for
5 the Project. The General Plan Alternative is consistent with the City of Redlands' General Plan.
6 F. In order to proceed with the development of the General Plan Alternative, the
7 Parties agree that Real Parties shall amend the existing Tentative Tract Map No. 16361 and the
8 amended map will retain the original no. 16361, or shall submit another tentative tract map that
9 conforms to the provisions of Paragraph 3.E. above. The Parties further agree that Conditional
10 Use Permit No. 780 may be revised accordingly, or another conditional use permit may be
11 submitted, to permit the development of the General Plan Alternative.
12 G. Pursuant to the authority of Public Resources Code section 21166 and section
13 15162 of title 14 of the California Code of Regulations, the Parties agree that no further
14 environmental review will be required for the Project or for the development of the General Plan
15 Alternative under CEQA as part of this Stipulated Judgment because the EIR has already studied
16 and evaluated the General Plan Alternative and there are no substantial changes proposed in the
17 General Plan Alternative that will require revisions of the previous EIR. There are no new
18 significant environmental effects or a substantial increase in the severity of previously identified
19 significant effects resulting from the General Plan Alternative. As a result, all previously
20 considered mitigation measures, and the analysis of such measures in the Project's FIR, remain
21 equally applicable to the General Plan Alternative.
22 4. Attorneys' Fees
23 Real Parties Frank J. Mistretta, Trustee, and Margaret Mistretta, Trustee of the Frank J.
24 Mistretta Family Trust, established February 1, 1.983 shall pay to Petitioner the amount of
25 $48,782.60 for Petitioner's reasonable attorneys' fees and costs associated with Petitioner's
16 prosecution of this action (the "Payment"). No Party other than Frank J. Mistretta, Trustee, and
27 Margaret Mistretta. Trustee of the Frank J. Mistretta Family Trust, established February 1, 19831
28 shall be responsible for making the Payment to Petitioner. The Payment shall be made payable to
4
STIPULA FEDJUDGMEN4
I the Client 'Trust Account of counsel of record for Real Parties, Downey Brand LL.P. and
2 "escrowed" therein for Petitioner's benefit pending entry of this Stipulated Judgment. The
3 Payment's deposit into the Downey Brand LLP Client Trust Account shall be an express
4 condition precedent to the filing of this fully-executed Stipulated Judgment with the Court, and
5 1 Downey Brand LLP shall notify Petitioner's counsel of record, Leibold, McClendon & Mann,
6 P.C., when such deposit occurs. Not later than 15 days after final Court approval and service of
7 notice of entry of this Stipulated Judgment pursuant to California Code of Civil Procedure section
8 664.5, Downey Brand LLP, shall disburse the Payment to Petitioner by check made payable to
9 "Leibold, McClendon & Mann Client Trust Account." In no event shall Downey Brand LLP be
10 responsible for making the Payment to Petitioner unless and until it receives the Payment funds
I I from Frank J. Mistretta, Trustee, and Margaret Mistretta, Trustee of the Frank J. Mistretta Family
12 Trust, established February 1, 1983.
13 5. Reservation of Rights
14 Except as expressly provided in this Stipulated Judgment, nothing in this Stipulated
15 Judgment is intended or shall be construed to preclude Redlands from exercising its discretion or
16 authority under any law, statute, ordinance, or regulation.
17 6. Release by Petitioner of Redlands and Real Parties
18 Upon the effective date of this Stipulated Judgment, Petitioner, including its members (a
19 list Petitioner's members is attached hereto as Exhibit "A" and incorporated herein by this
-)0
reference), its successors, assigns, officers, directors, attorneys, employees and agents shall and
21 do hereby release and discharge and covenant not to sue Redlands and Real Parties, as well as
22 their predecessors, successors, assigns, affiliates, officers, directors, shareholders, attorneys,
23 employees and agents for any and all claims, liabilities, or causes of action of every kind and
24 nature whatsoever, in law and in equity, whether known or unknown, suspected or unsuspected,
25 foreseen or unforeseen, which arise out of or are related to the Action. Such release will not
216 apply to the enforcement of the terms of this Stipulated Judgment. In furtherance of this
27 intention, the Petitioner and its members acknowledge that they are familiar with Section 1542 of
28 the Civil Code of the State of California, which provides as follows:
5
STIPLIA FFD J I I DGMEN T
A general release does not extend to claims which the creditor does
not know or suspect to exist in his or her favor at the time of
executing the release, which if known by him or her must have
materially affected his or her settlement with the debtor.
3
4 Petitioners and its members waive and relinquish any right or benefit that they have or
5 may have under Section 1542 of the California Civil Code to the full extent that they may
6 lawfully waive all rights and benefits pertaining to the subject matter of this Stipulated Judgment.
7 7. Release by Redlands and Real Parties of Petitioner
8 Upon the effective date of this Stipulated Judgment, both Redlands and Real Parties, and
9 their respective predecessors, successors, assigns, affiliates, officers, directors, shareholders,
10 attorneys, employees and agents shall and do hereby release and discharge and covenant not to
11 sue Petitioner, including its members (a list Petitioner's members is attached hereto as Exhibit "A"
12 and incorporated herein by this reference), and its successors, assigns, officers, directors,
13 attorneys, employees and agents for any and all claims, liabilities, or causes of action of every
14 kind and nature whatsoever, in law and in equity, whether known or unknown, suspected or
15 unsuspected, foreseen or unforeseen, which arise out of or are related to the Action. Such release
16 will not apply to the enforcement of the terms of this Stipulated Judgment. In furtherance of this
17 intention, the Redlands and Real Parties acknowledge that they are familiar with Section 1542 of
18 the Civil Code of the State of California, which provides as follows:
19 A general release does not extend to claims which the creditor does
not know or suspect to exist in his or her favor at the time of
20 executing the release, which if known by him or her must have
materially affected his or her settlement with the debtor.
21
22 Redlands and Real Parties waive and relinquish any right or benefit that they have or may
23 have under Section 1542 of the California Civil Code to the full extent that they may lawfully
24 waive all rights and benefits pertaining to the subject matter of this Stipulated Judgment.
2)5 8. Integration
26 This Stipulated Judgment contains all of the terms and conditions agreed upon by the
27 Par-ties relating to the matters covered by this Stipulated Judgment, and supersedes any and all
28 prior and contemporaneous agreements, negotiations, correspondence, understandings. and
6
STIPULATED JUDGMENT
I communications of the Parties, whether oral or written, respecting the matters covered by this
2 Stipulated Judgment. This Stipulated Judgment may be amended or modified only by a writing
3 signed by the Parties or their authorized representatives, and then by order of the Court.
4 9. Knowing, Voluntary Agreement
5 Each Party acknowledges that it has been represented by legal counsel, and that each party
6 has reviewed, and has had the benefit of legal counsel's advice concerning, all of the terms and
7 conditions of this Stipulated Judgment.
8 10. Jurisdiction, Interpretation
9 This Court shall retain jurisdiction for the sole purpose of insuring compliance with this
10 Stipulated Judgment. This Stipulated Judgment shall be deemed to have been drafted equally by
I I the Parties, and shall not be interpreted for or against any Party on the ground that any such Party
12 drafted it. This Stipulated Judgment shall be governed by and construed in accordance with the
13 laws of the State of California.
14 11. Authority to Execute
15 Each Party represents and warrants that the person who has signed this Stipulated
16 Judgment on its behalf is duly authorized to enter into this Stipulated Judgment, and to bind that
17 Party to the terms and conditions of this Stipulated Judgment.
18 12. Counterparts
19 This Stipulated Judgment may be executed by the Settling Parties in counterpart originals
20 with the same force and effect as if fully and simultaneously executed as a single, original
21 document.
22 13. 'Waiver of Appeal Right-, Reservation of Right to Appeal Collateral Orders
21 The Parties agree to waive their right to appeal from this Stipulated Judgment. Nothing in
24 this Stipulated Judgment shall be construed as a waiver of any Party's right to appeal from an
15 order that arises from an action to enforce the terms of this Stipulated Judgment.
226 14. Effective Date
27 The effective date of this Stipulated Judgment shall be the date that the Judge of the
28 Superior Court approves and enters this Stipulated Judgment.
7
STIPUI ATED JUDGMENT
15, No Third Party Benefits
This Stipulated Judgment is made for the sole benefit of the Parties. No other person or
3 entity shall have any rights or remedies under or by reason of this Stipulated Judgment, unless
4 otherwise expressly provided for herein.
5 IT IS SO STIPULATED.
6
7 DATED: November 2006 REDLANDS RESIDENTS FOR RURAL LIVING
8
NAME-
10 Its:
11 DATED: November—— CITY OF REDLANDS AND CITY COUNCIL OF
12 THE CITY OF REDLANDS
13
14 By:
NAME: jon"Harrison
15 Title: Mayor
� _���- t 0�C Redlands
DATED: November 2006 FRA FAMILY
City R�
— NK J. MISTRETTA FAMILYTRUST,
16 established February 1, 1983
17
18 By: FRANK J. MISTRETTA
19 DATED: November 2006 Trustee
— FRANK J. MISTRETTA FAMILY TRUST,
20 established February 1, 1983
21
22 By: MARGARET MISTRETTA
23 Trustee
24
25
26
27
-)8
8
STINJI-ATFID JUDGMENT
I APPROVED AS TO FORM:
2
DATED: November 2006 DOWNEY BRAND LLP
3
4
5 MICHAEL N. MILLS
Attorneys for Real Parties in Interest
6 CHAD COVINGTON; COVINGTON
CONSTRUCTION AND DEVELOPMENT;
7 AND FRANK J. MISTRETTA, TRUSTEE, and
MARGARET MISTRETTA, TRUSTEE of the
8 FRANK J. MISTRETTA FAMILY TRUST,
established February 1, 1983
9
10 DATED: November , 2006
12
DA , EL J- McHUGH
13 ity Attorney
For Respondents CITY OF REDLANDS and the
14 CITY COUNCIL OF THE CITY OF REDLANDS
15
DATED: November 2006 LEIBOLD, McCLENDON & MANN, P.C.
cH
EL
ky�Att e
16
17
18 By: JOH !Gb. �IeCLENDON
19 Attorneys Xor Petitioner
REDLANDS RESIDENTS FOR RURAL LIVING
20
21
22 IT IS SO ORDERED.
23 DATED: 2006
24
25
HON. JOHN P. WADE
26 JUDGE OF THE SUPERIOR COURT
27 7�42if)3
28
9
STIPULATED JUDGMENT
I DATED: . 2006
3 HON. JO `,N P. WADE
JUDGE OF THE SUPERIOR COURT
4
5 793251>3
6/20/06
6 91160.13
11/7/06
7
6
9
10
11
12
13
14
15
16
17
14
19
20
21
22
23
24
25
26
27
28
10